Senate Bill S2365

                                BILL NUMBER:S2365               REVISED 2/6/13

TITLE OF BILL:  An act to amend the real property actions and
proceedings law, in relation to the intervention of the district attor-
ney having jurisdiction in a proceeding where use or occupancy of resi-
dential rental property is illegal

PURPOSE OR GENERAL IDEA OF BILL:  This bill would give the District
Attorney the jurisdiction to intervene in cases in which a landlord
seeks to recover property where use or occupancy involves any illegal
trade or business on the premises.

SUMMARY OF SPECIFIC PROVISIONS:  The District Attorney has jurisdiction
if the proceeding for removal is the result of illegal trade or busi-
ness.

JUSTIFICATION:  This proposed Bill seeks to address certain provisions
of the Real Property and Procedure Law (R.P.A.P.L.) concerned with the
evictions of tenants and/or their occupants who use or allow the use of
their premises for illegal trade or business, for example human traf-
ficking, prostitution, gambling, trademark counterfeiting, fencing
stolen goods, and narcotics and marijuana manufacture and sale. Under
current law, certain provisions of the Real Property Law (R.P.L. 231(1)
and the R.P.A.P.L. (R.P.A.P.L. 711(5) and R.P.A.P.L.  715) bestow the
right and establish the procedure by which landlords must pursue
evictions of their tenants and occupants who are using or allowing the
              

use of their property for purposes of illegal trade or business, histor-
ically known as "Bawdy House Cases." In essence, these statutes current-
ly allow a District Attorney, as a "duly authorized enforcement agency
... under a duty to enforce the provisions of the penal law..."
R.P.A.P.L. 715(1)) to serve written notice upon the landlord demanding
that an eviction proceeding be initiated against property that is being
used for illegal purposes.  The landlord must then, within five days,
start and "diligently pursue" an eviction proceeding under these stat-
utes. If the landlord fails to do so, the District Attorney may bring
the proceeding.

These actions are an important weapon against human trafficking, prosti-
tution, gambling, trademark counterfeiting, fencing stolen goods, and
narcotics and marijuana manufacture and sale. They protect landlords and
other tenants from the deterioration of their homes and from the
violence that often accompanies these illegal businesses. These actions
further serve to increase the quality of life in neighborhoods, preserv-
ing and protecting the safety and security of our communities. For exam-
ple, there has been a marked decline in the number of brothels in Queens
County and in the number of illegal narcotics enterprises in the Bronx
as a result of these statutes.

Of course, the essential proof in such an action is the proof that the
property has been used for illegal trade or business. This invariably
requires the questioning of police witnesses including undercover police

officers, the introduction of voluminous police reports, as well as the
establishment of the tenant's relationship to the criminal industry.
Obviously, prosecutors are equipped with special expertise in such
matters and are far more experienced in dealing with police witnesses,
police documentation, including laboratory analyses, and are more sensi-
tive to securing the identity of the undercover police officer. They are
also more attuned to dealing with the confidential information that is
often attached to search warrant cases, ever-aware of the potentially
lethal consequences of classified information being published. On the
other hand, landlord-tenant attorneys possess more expertise in issues
relating to tenancy matters, succession rights and possessory interests
in property.

Historically, in situations where the landlord brought a proceeding
pursuant to a demand letter from the District Attorney's Office, the
practice had been for prosecutors to assist the landlord. This ability
to work side-by-side not only reduced the burden on the landlord's
attorney but also made the proceedings more expeditious and fostered the
security of not only police officers but also confidential informants
who risked their lives obtaining information necessary to establish
probable cause for the issuance of a search warrant. See, Rochdale
Village, Inc. v. Harris, 172 Misc.2d 758 (Civil Court, Queens County
1997).

Recently, however, some courts have began to question the legality of
the District Attorney's appearance, pointing out that the present statu-
tory structure contemplates such a proceeding by either the landlord or
(if he fails to act) the District Attorney, but not both.  Perdomo v.
Morgenthau, 60 AD3d 435 (1't Dept. 2009); Dennis Lane Apartments, Inc.,
v. Alex Green, 864 N.Y.S.2d 247; 21 Misc.3d 480 (2008).

The ability to work with landlords in order to facilitate an eviction of
this type is one that needs to be preserved. The reason for the eviction
is based on a criminal activity; activity which needs to be addressed by
those who are routinely dealing with the evidence and fruits of a crime-
the District Attorney's Office. Furthermore the District Attorney's
office represents a voice that is not party to the eviction-those of the
neighbors and community members who have to live side by side with this
criminal activity, fearing for their lives at times and the safety of
their children. This is not an eviction based on non-payment or lease
provisions being violated, this is an eviction based on the continuous
criminal activity in an residence which endangers those living in the
community surrounding this residence.

The present proposal seeks to simply plug this gap and permit both the
landlord and the District Attorney to bring the action together. This
bill seeks to remove this issue from the judiciary and will firmly and
clearly legislatively establish that these attorneys are permitted to
work in tandem for the betterment of the community, for safer streets
and for more secure living and working environments.

PRIOR LEGISLATIVE HISTORY: 2012: S. 6026 - Passed Senate

FISCAL IMPLICATIONS: To be determined.

EFFECTIVE DATE:  This act shall take effect 90 days after it shall have
become law.